This is the first book in healthcare ethics addressing the moral issues regarding ownership of the human body. Modern medicine increasingly transforms the body and makes use of body parts for diagnostic, therapeutic and preventive purposes. The book analyzes the concept of body ownership. It also reviews the ownership issues arising in clinical care (for example, donation policies, autopsy) and biomedical research. Societies and legal systems also have to deal with issues of body ownership. A comparison is made between specific legal arrangements in The Netherlands and France, as examples of legal approaches. In the final section of the book, different theoretical perspectives on the human body are analyzed: libertarian, personalist, deontological and utilitarian theories of body ownership.
Henk ten Have and Jos Welie have brought together an admirable collection of essays about the ways in which people have ownership rights to their bodies. Traditionally, the common law defined ownership as the rights of persons to control the use of things. According to tort law, the definition of "person" includes any part of the body and anything attached to it or practically identified with it. Violation of the person included nonconsensual contact with his or her body, clothing, cane, or objects held in the hands. As the authors of the essays in this book acknowledge, however, the concept of ownership as it pertains to the human body raises philosophical issues regarding the relationship between persons and their bodies, the senses in which parts of the body can be legally treated as owned property, and the limits of the moral authority of society or the government to interfere in consensual use of one's body.
Initially, the book considers such issues in terms of their relation to health care, including consent to autopsy and commercial uses of human tissue. Use of the body and its parts for experimental purposes is basic to research that leads to the prolongation of life and relief of suffering. Blasszauer and Heubel raise the concern, however, that certain uses of the human body -- the sale of organs, blood, sperm, or ova -- are impermissible. Such considerations also raise questions regarding which tissues ought to be protected as parts of one's body. Heubel writes, for example, that in 1993 the German Federal Court awarded damages to a plaintiff whose sperm had been negligently discarded by a sperm bank. The court held that the sperm was still part of the plaintiff's body and therefore was protected against use or disposal without permission. As Dekkers and ten Have point out, insofar as blood and other human tissues, as parts of the body, are considered to have special moral status, this ruling places the burden of proof on researchers to justify experimentation with such items as though they were mere things.
Taking this analysis further, the authors turn to the history of philosophy. Contemporary discussions about morally permissible uses of the body usually do not seriously engage arguments from the history of ethics, but such issues have a long history of analysis. For example, Gracia considers the moral implications of various interpretations of what constitutes ownership of the body. The body can be owned by God, persons themselves, or society, and each of these types of stewardship leads to different conclusions regarding the permissibility of various uses of the body. Such historical analysis is one of the strongest features of this book.
The richness of such discussion is marked by fundamental considerations of the relationship between persons and their bodies and the limits of the state's moral authority to interfere with the consensual use of one's body. Schotsmans, Jensen, Illhardt, and Evans each argue on various grounds that the human body has special moral importance, which justifies a blanket prohibition of uses that violate this status. Wildes responds convincingly that general secular reason is incapable of disclosing a unique position to ground such moral authority, and he argues that persons themselves must have full ownership rights over their own bodies. With the moral authority to use one's body and its parts for whatever purpose one chooses with consenting others, state prohibition is without justification provided that there is no harm to innocent third parties.
A question the book leaves largely unanswered, though, is how one makes distinctions among parts of the body. Unlike other types of things that can be protected as part of my personal integrity (e.g., my hat, cloak, or boots), my body parts are experienced as "me." Some parts are necessary for my existence as a unique person (e.g., the higher brain); other parts are necessary for me to live (e.g., the heart); and there are unnecessary parts (e.g., the appendix). Some parts are directly experienced (e.g., hands), whereas others are not (e.g., hair). Like other types of things, though, parts of the body that are not necessary for embodiment or existence can be replaced at will. What makes such things parts of us is our ability to experience them as such. The more particular body parts can be replaced without loss of embodied function (by organ transplantation, for example), the less plausible will be claims that they should be considered to be different from other types of property that can be given or sold. The more body parts are like other replaceable objects (glasses, canes, and crutches), the more plausible it becomes that they should also be available for sale. It is, therefore, implausible that all body parts must be treated with the same respect and dignity owed to persons.
Ownership of the Human Body is an important addition to bioethical scholarship. It addresses a void in the literature and is strongly recommended for physicians, philosophers, bioethicists, and others engaged in the public policy debates concerning the use of the human body for health, research, and commerce.
Reviewed by Mark J. Cherry, Ph.D.
Copyright © 1999 Massachusetts Medical Society. All rights reserved. The New England Journal of Medicine is a registered trademark of the MMS.
